Citation Nr: 0001105 Decision Date: 01/13/00 Archive Date: 01/27/00 DOCKET NO. 98-09 144 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, Puerto Rico THE ISSUE Entitlement to an increased disability rating for service- connected dorsolumbar paravertebral myositis, with posterior disc bulge at L4-5, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Allen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1978 to November 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico, which denied a claim by the veteran seeking entitlement to an increased disability rating for his service-connected back disorder. Initially, the veteran had requested a personal hearing in connection with this appeal; however, the veteran subsequently withdrew this request in written correspondence dated in July 1998. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the veteran's claim has been developed. 2. The veteran's back disorder was recently manifested by left-sided radiculopathy and moderate paravertebral muscle spasm with mild weakness of the right ankle muscles and moderate tenderness to palpation. Range of motion was 80 degrees of flexion, 35 degrees of extension, 30 degrees of right and left lateral flexion, and 35 degrees of right and left rotation. 3. The evidence shows functional impairment consisting of difficulty with heavy lifting and prolonged sitting, resting, and driving. 4. The evidence does not show that the veteran's service- connected back disability involves severe limitation of motion of the cervical or lumbar spine; absent ankle jerk or other signs of severe intervertebral disc syndrome; or a listing of the whole spine, narrowing of joint space, or other signs of severe lumbosacral strain. CONCLUSION OF LAW The criteria for a disability rating of 20 percent, and no more, is warranted for the veteran's service-connected dorsolumbar paravertebral myositis, with posterior disc bulge at L4-5. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.71a, Part 4, Diagnostic Codes 5285-5295 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Initially, the Board finds that the veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). A well-grounded claim is one that is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). Here, the veteran has established a well-grounded claim because he is service-connected for a back disability and has asserted that his disability is currently worse than rated; medical evidence has been submitted which the veteran believes supports his claim. See Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992) (where a veteran asserted that his condition had worsened since the last time his claim for an increased disability evaluation for a service-connected disorder had been considered by VA, he established a well-grounded claim for an increased rating). Because the veteran's claim is well-grounded, VA has a duty to assist him with the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In this regard, the Board notes that the RO provided the veteran with recent VA examinations. It also obtained all medical records that the veteran indicated were available and provided him with the opportunity to appear at a personal hearing. Overall, the Board finds that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a) (West 1991). In deciding claims for VA benefits, "when there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant." 38 U.S.C.A. § 5107(b) (West 1991). II. Evidence Service medical records reflect no back defects upon the veteran's entry into service, according to an August 1978 induction medical examination report. A June 1981 outpatient record indicates that the veteran complained of low back pain of 2 days duration. Objective examination revealed normal neurological status, straight leg raising, and heel and toe walking. There was no muscle spasm. Assessment was lumbar muscle strain. A May 1982 outpatient record reflects that he had low back and upper vertebra pain for 4 months. Physical examination revealed no discoloration, tenderness, or deformity. Assessment was muscle spasms. A June 1982 record indicates that back examination was negative. Range of motion was excellent. Assessment was "unknown [muscle spasm]." Similar findings and conclusions are noted in a July 1982 outpatient note. The veteran separated from service, effective November 1982. He declined a separation medical examination. Subsequent to service, a June 1983 VA examination report shows complaints of increased low back pain. It was non- radiating, but had associated tightness of the dorsal aspect of the legs. After orthopedic examination, the diagnoses were strain and myositis, lumbar paravertebral muscles, traumatic, moderate-to-severe, with secondary short hamstrings and tenosynovitis. A June 1986 VA examination report reflects that the veteran had an erect posture and normal gait. Physical evaluation revealed mild, lateral strain of the dorsal spine with tenderness and mild-to-moderate muscle spasm of the dorsal and lumbar paravertebral muscles. There was no limitation of range of motion. Straight leg raising was positive. Neurologic examination was normal. Diagnosis was dorsolumbar paravertebral myositis and left scoliosis. A November 1986 private evaluation report indicates subjective complaints of low back pain, irradiating to both gluteus muscles posteriorly. There was numbness in the legs, mainly the left, with difficulty with prolonged sitting, standing, walking, and driving. Physical examination revealed an unsteady gait. There was straightening of the normal lordotic curvature at the cervical region with spasms of the paravertebral muscles. Deep palpation of the trapezius muscles was painful, hard, and spasmodic. Cervical range of motion was flexion to 20 degrees, extension to 20 degrees, lateral flexion to 20 degrees, and right and left rotation to 25 degrees. Hyperflexion and hyperextension at the dorsal region was painful. Shoulder lift produced pain along both arms. There was no muscle atrophies visible, but there was a loss of strength in both lower extremities. At the lumbar region, there was evidence of straightening of the normal lordotic lumbosacral curvature, with spasms. Deep palpation in both sacroiliac zones was painful. Range of motion was flexion to 65 degrees, extension to 10 degrees, lateral flexion to 10 degrees, and rotation to 20 degrees. X-rays revealed spondylosis in the cervical, dorsal, and lumbar regions. Diagnosis was severe cervical, dorsal, and lumbar myositis; severe dorsal and lumbar sprain; spondylo- arthritis; and radiculopathy in both lower and upper extremities. Private medical records from March 1990 to March 1997 show intermittent treatment for the veteran's low back. VA medical records show that the veteran was seen for low back pain from October 1995 to January 1996. The pain was localized in the center of the back and radiated toward the left buttock, thigh, and leg. Radiation to the left lower extremity was of approximately 1 1/2 years duration. X-rays revealed mild straightening of the lordosis and spondylosis, suggesting muscle spasm. A computed tomography (CT) of the lumbosacral spine revealed a broad base posterior bulging disc at L4-5. A December 1996 VA examination report reflects complaints of low back pain, as well as swelling of the knees and weakness of the legs. Physical evaluation revealed no postural abnormalities and no fixed deformities. There was evidence of mild dorsolumbar paravertebral muscle spasm. Range of motion was 80 degrees of flexion, 30 degrees of extension, 35 degrees of left lateral flexion, 40 degrees of right lateral flexion, and 35 degrees of right and left rotation. There was no objective evidence of pain on motion. There was no muscle atrophy of the lower extremities; muscle strength was normal. Knee and ankle jerks were 2+ bilateral and symmetrical. Straight leg raising and Lasegue's sign were negative bilaterally. Diagnosis was dorsolumbar paravertebral myositis with broad base posterior bulging disc at L4-5. The most recent medical evidence consists of an October 1998 VA examination report. It indicates complaints by the veteran of moderate low back pain with radiation to both buttocks and legs and the right foot. Precipitating factor was heavy lifting. The veteran had difficulty with prolonged sitting, resting, and driving. Range of motion was 80 degrees of flexion, 35 degrees of extension, 30 degrees of left and right lateral flexion, and 35 degrees of left and right rotation. There was no painful motion. Fatigue, weakness, and endurance were within normal limits. There was moderate paravertebral muscle spasm, mild weakness of the right ankle dorsiflexor muscles, and moderate tenderness to palpation of the lumbar paravertebral muscles. There were no postural abnormalities or fixed deformities of the back. Neurological examination revealed diminished right knee jerk, positive straight leg raising, and positive Lasegue's sign bilaterally. Ankle jerks were 2+ bilaterally. An associated electromyography (EMG) study revealed left L5-S1 radiculopathy. Diagnosis was dorsolumbar paravertebral myositis with broad base posterior disc bulge at L4-5 and left L5-S1 radiculopathy. III. Analysis Service-connected disabilities are rated pursuant to diagnostic codes (DC) in the Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Rating Schedule). It must be noted that the pyramiding of various diagnoses of the same disability is prohibited. 38 C.F.R. § 4.14 (1999). Where there is a question as to which of two evaluations under a specific diagnostic code shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (1999). It is noteworthy that, in considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (1999); Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the current level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider any and all "functional" effects. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Appeals for Veterans Claims (formerly United States Court of Veterans Appeals) held that 38 C.F.R. §§ 4.40, 4.45, were not subsumed into the diagnostic codes under which a veteran's disabilities are rated, and that the Board has to consider the "functional loss" of a musculoskeletal disability under 38 C.F.R. § 4.40, separate from any consideration of the veteran's disability under the diagnostic codes. DeLuca, 8 Vet. App. 202, 206 (1995). The veteran's service-connected back disorder is currently rated based on DC 5293 for intervertebral disc syndrome. 38 C.F.R. § 4.71a, DC 5293 (1999). The Board finds that this DC most closely reflects the nature of the veteran's disability, given his current symptomatology and the fact that he has been diagnosed with a bulging disc. DC 5293 indicates that intervertebral disc syndrome involves symptoms of "sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings to the site of the diseased disc." Id. A 10 percent disability rating is authorized for "mild" symptoms of intervertebral disc syndrome. A 20 percent rating is warranted for "moderate" symptoms with "recurring attacks." A 40 percent rating is warranted for "severe" intervertebral disc syndrome with recurring attacks and only "intermittent relief." Id. Here, the medical evidence shows that the veteran's back disorder was recently shown to have left-sided radiculopathy and moderate paravertebral muscle spasm. There was also mild weakness of the right ankle muscles and moderate tenderness to palpation. However, the veteran's disability does not involve absent ankle jerk. In addition, he has only slight limitation of range of motion of the lumbar spine with no pain on motion. He has no postural abnormalities or fixed deformities and no muscle atrophy of the lower extremities. These findings are shown in the 1996 and 1998 VA examination reports, as well as the recent private and VA outpatient records. From a functional standpoint, see DeLuca v. Brown, supra, the veteran has difficulty with prolonged sitting and driving and with heavy lifting. Overall, the Board concludes that these symptoms are more serious than those contemplated by "mild" intervertebral disc syndrome. Instead, the Board finds that they are "moderate" in nature, and involve recurring attacks. 38 C.F.R. § 4.71a, DC 5293 (1999). Therefore, a higher rating, to 20 percent, is warranted. At the same time, the Board finds that the veteran's back disorder does not warrant a 40 percent disability rating. The recent medical evidence does not show severe, recurring symptoms. The veteran does not have absent ankle jerk or other symptoms of a "severe" disability. His muscles spasm and paravertebral tenderness have been clinically described as "moderate." From a functional standpoint, there is no recently-noted weakness, fatigue, or loss of endurance. While a private evaluation report indicates that the veteran had an unsteady gait, pain on motion, a loss of lower extremity strength, and other symptoms indicative of a more severe disability, that report is dated in 1986, almost 15 years ago. As such, it is not indicative of the current status of the veteran's back disorder. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In light of the above, the Board finds that a 20 percent disability rating is warranted under DC 5293 for the veteran's back disability. The Board notes that the veteran's back disability may also be appropriately rated under DC 5292 for limitation of motion of the lumbar spine, or, alternatively, DC 5295 for lumbosacral strain. 38 C.F.R. § 4.71a, DCs 5292, 5295 (1999). However, an evaluation in excess of 20 percent is not warranted under either of these DCs. DC 5292 authorizes a 40 percent disability rating for "severe" limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, DC 5292 (1999). Here, the most recent medical evidence shows lumbar range of motion of 80 degrees of flexion, 35 degrees of extension, 30 degrees of left and right lateral flexion, and 35 degrees of left and right rotation. Functionally, the veteran has no pain on motion, fatigue, weakness, or loss of endurance causing additional functional loss of range of motion over and above that objectively measured. Overall, the Board concludes that the veteran's lumbar spine does not have "severe" limitation of motion. Id. DC 5295 authorizes a disability rating in excess of 20 percent for lumbosacral strain manifested by a "listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion." 38 C.F.R. § 4.71a, DC 5295 (1999). These symptoms are not currently manifested. No medical evidence shows that the veteran's spine lists to the opposite side. There is no noted positive Goldthwaite's sign. There is no marked limitation of forward bending, no noted osteo-arthritic changes, and no narrowing or irregular joint space. Finally, there is no noted abnormal mobility on forced motion. Therefore, a rating in excess of 20 percent is not authorized under DC 5295. Id. The veteran does not have residuals of fractured vertebra (DC 5285), complete bony fixation of the spine (DC 5286), or ankylosis of the spine (DC 5287, 5288, 5289). 38 C.F.R. § 4.71a, DC 5285-5289 (1999). Thus, these DCs are not applicable in this case. In sum, the Board finds that the veteran's service-connected back disorder warrants a 20 percent disability rating under DC 5293. The veteran's dorsolumbar paravertebral myositis currently has symptoms, both objective and functional, resembling moderate intervertebral disc syndrome. The Board finds no diagnostic code for back disabilities under the Rating Schedule, and no functional effects, that would entitle the veteran to a higher rating. In light of the above, the claim is granted. ORDER An increased rating of 20 percent for service-connected dorsolumbar paravertebral myositis, with posterior disc bulge at L4-5, is granted, subject to the controlling criteria applicable to the payment of monetary awards. A. BRYANT Member, Board of Veterans' Appeals